The admitted seizure of communications from the Internet backbone, for which we have government admissions plus the evidence we received long ago from Mark Klein.

The government's admitted search of the entire communications stream, including the content of communications.

We're very proud of this motion (especially the infographic), and we're hoping that this shifts the conversation around the world to how the surveillance actually happens, rather than the U.S. government's self-serving word games about it.

As this motion progresses, here are a few points to keep in mind:

1) Government Admissions: This motion is based almost entirely on the government's formal, acknowledged admissions. This is because a Motion for Partial "Summary Judgment," such as this one, cannot be decided if the parties disagree about material facts. It is a common litigation strategy to make a motion based upon the undisputed facts so that the court can rule on an important legal issue, even if there are other facts that are not yet agreed upon.

That doesn't mean that EFF thinks that the government's current description is correct or complete about what they are actually doing. We've watched the government play fast and loose with the facts—and even outright lie to Congress—too many times for that. In this case, many careful watchers of the government believe that the government isn't actually filtering out some wholly domestic traffic—stage 2 in our brief—or at least isn't doing it in the way it says it is. But because to win this motion we do not need the judge to decide whether the government is telling the truth about the filtering, we have included stage 2 in our description. Our argument is that the government's searching violates the Fourth Amendment even if stage 2 occurs.

2) Domestic backbone only: This motion is based on the domestic backbone surveillance as it has been described in the government's released documents, including Foreign Intelligence Surveillance Court opinions. This is what the government sometimes calls "upstream" and claims is allowed by FISA Amendments Act section 702 (50 USC 1881a). To be clear, this motion does not address other areas of government mass surveillance. For example, we know that the government also conducts sweeping mass collection outside of the United States of both Americans' and foreigners' communications under Executive Order 12333 as well as other kinds of surveillance inside the U.S. This motion is just about the Fourth Amendment violations due to domestic surveillance through tapping into the Internet backbone.

Note also that EFF does not think section 702 of the FISA Amendments Act actually authorizes the backbone collection. Section 702 says nothing about mass seizure and searches, much less authorizes them. But in any event, the orders of the FISC issued under section 702 are not the warrants that the Fourth Amendment requires—so the technique is unconstitutional even if 702 applies.

3) Backbone collection isn't just at the telecommunications "border": One reason that many people, including our expert J. Scott Marcus, don't believe that the government is simply searching through international or foreign-to-foreign communications when it engages in backbone collection is that those collections aren't just happening at the US "border" for communications. The "border" for these purposes would be where the undersea fiber optic cables come up out of the ocean and satellite links come down into the country. For example, none of the undersea cables land in San Francisco, as shown by these maps: Transpacific Cable Landings: Western US, which is a blow up of this cool interactive map. Nor, according to expert analysis, would it be the right location to intercept satellite feeds into and out of the country. Meanwhile, a screenshot of a Snowden slide from a Brazilian news report shows that the government has a large number of collection points in the US heartland, far from any international border.

There are lots of other reasons to be skeptical of the government's claims, but our point in the motion is that even if they are limiting their searches to communications that cross the border, the searches are still unconstitutional. This is because they admittedly includes Americans' communications when they speak to someone abroad or access a website hosted abroad, something we talk about on pages 6-8 of the motion and also again on pages 19-20 in footnote 22.

4) Word games to watch out for: As we try to make clear in the motion, especially at footnote 13, the government uses a very different definition of "collect" or "acquire" than most people do, limiting "collection" or "acquisition" to stage 4, when the communications are actually stored in the government's database. An easy place to see this is in DNI Clapper's explanation for denying to Senator Wyden that the U.S. government is “collecting” data on millions or hundreds of millions of Americans. Clapper told NBC's Andrea Mitchell: “[T]here are honest differences on the semantics when someone says ‘collection’ to me, that has a specific meaning, which may have a different meaning to him [Senator Wyden].” DNI Clapper's position is not new. A 1982 Department of Defense manual says that information is considered to be collected only after it has been “received for use by an employee of a DoD intelligence component,” and that “[d]ata acquired by electronic means is ‘collected’ only when it has been processed into intelligible form,” without regard to when the information was initially acquired by a surveillance device.

These are just four things that may help you keep track of the discussion as this fight continues.

Related Updates

Once-secret surveillance court orders obtained by EFF last week show that even when the court authorizes the government to spy on specific Americans for national security purposes, that authorization can be misused to potentially violate other people’s civil liberties. These documents raise larger questions about whether the government can...

Last month, Congress reauthorized Section 702, the controversial law the NSA uses to conduct some of its most invasive electronic surveillance. With Section 702 set to expire, Congress had a golden opportunity to fix the worst flaws in the NSA’s surveillance programs and protect Americans’ Fourth Amendment rights...

President Donald Trump’s first State of the Union address last night was remarkable for two reasons: for what he said, and for what he didn’t say. The president took enormous pride last night in claiming to have helped “extinguish ISIS from the face of the Earth.” But he failed to...

Dear friends, Today, the United States Congress struck a significant blow against the basic human right to read, write, learn, and associate free of government’s prying eyes. Goaded by those who let fear override democratic principles, some members of Congress shuttered public debate in order to pass a bill that...

UPDATE, January 12, 2018: The Senate could vote Tuesday on a disastrous NSA surveillance extension bill that violates the Fourth Amendment. Click the link at the bottom of the page to email your Senator today and tell them to oppose bill S. 139. The House of Representatives cast a deeply...

Multiple nonprofit organizations and policy think tanks, and one company have recently joined ranks to limit broad NSA surveillance. Though our groups work for many causes— freedom of the press, shared software development, universal access to knowledge, equal justice for all—our voices are responding to the same threat: the possible...

The Supreme Court announced today that it will not review a lower court’s ruling in United States v. Mohamud, which upheld warrantless surveillance of an American citizen under Section 702 of the Foreign Intelligence Surveillance Act. EFF had urged the Court to take up Mohamud because this...

One of the government’s most powerful surveillance tools is scheduled to sunset in less than three weeks, and, for months, EFF has fought multiple legislative attempts to either extend or expand the NSA’s spying powers—warning the public, Representatives, and Senators about circling bills that threaten Americans’ privacy. But the frenetic...

If you’ve been following EFF’s work, you’ll know that we’ve been fighting against the creeping surveillance state for over 20 years. Often, this means pushing back against the National Security Agency’s dragnet surveillance programs, but as new technology becomes available, new threats emerge. Here are some of the biggest legislative...

Since last night, the debate over how to reauthorize certain NSA surveillance authorities has seen a whirlwind of activity, culminating in the major news that the House Rules Committee postponed a vote today to potentially expand NSA spying powers. As we wrote yesterday: "According to reports published Tuesday...